Out of danger, are they really?
The article by Criminal Lawyers in
Dubai will discuss the not so much
liability of arbitrators in UAE in
accordance with the recent amendment in the laws pertaining to arbitration.
Why should we study arbitrator's liability? Simply because the authenticity of
international arbitration is highly questionable and is facing a reputational
crisis. Yet, the laws imposing criminal penalties on arbitrators have been
eradicated which is the topic of discussion of this article.
UAE has recently promulgated a decree which halted the long drawn controversy
regarding the criminal liabilities of arbitrators and experts which emerges from
their irrational behaviour or duties inconsistent with the laws of the
Arbitration Centre or from their unbiased nature. His Highness Sheikh Khalifa
Bin Zayed Al Nahyan issued Federal Decree Number 24 of 2018 (the Decree
on 23 September 2018. The Decree amended several provisions of Federal Law
Number 3 of 1987, the UAE Penal Code wherein Article 257 which forms the basis
of this article.
The shift in the Law
Article 257 of the Penal Code was very much a concern for arbitrators concerning
the imposition of criminal liability on those who fail to perform their duty
impartially. However, the risk of penalties was low, yet it worked as a
deterrent for arbitrators, and they may be unwilling to take up new matters
which might cause breach for which they are not aware of.
Article 257 (The History)
Any individual who issues a request depicts a supposition, gives a report,
displays a case or demonstrates an incident for or against an individual, in
repudiation to the requirement of biases and trustworthiness, while acting in
his ability as a mediator, expert, interpreter or fact discoverer designated by
a regulatory or judicial authority or chosen by the parties, will be punished by
The aforementioned classes of people will be banned from assuming the
responsibilities which they were entrusted in the first instance, shall be
liable under Article 255 of this law.
Article 257 (The Present)
Any individual who, while acting in the limit of an expert, translator or
examiner chosen by a judicial authority in any civil or criminal case, or
delegated by an authoritative expert, affirms an issue in opposition to what is
valid and distorts that issue while knowing reality about it, will be condemned
to detainment for a minimum term of a year and a maximum term of five years. The
punishment ought to be brief detainment if the referenced people were allocated
to order in connection to a felony.
The amendment issued by the legislator clarifies the application of Article 257
on a specific category of the individual which earlier was applicable to anyone
issuing a decision. As of now, it is only applicable to any person acting the
capacity of an expert, translator or investigator appointed by judicial
authority, thereby removing arbitrators from the purview.
Another significant amendment which can be witnessed in the Decree is the
Article 236 which now makes arbitrators and experts are public employees for the
purpose of new Article 234 and 237, which provides for the criminal liability of
the public employees or employees of the international organization. We believe
the new amendment is the positive step in the right direction and is a welcoming
change towards deposing confidence in the arbitration proceedings within UAE.
Nevertheless, we wait for more clarity in terms of interpretation and
application of Article 236.